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When Anger Turns to Spite: Why Motive for Child Custody Must Be Determined

Child custody can often engender highly contentious debate when it comes time to decide who will have custody of the child or children. Whether the parents in question are married, unmarried, divorced, or estranged there is nothing more important than deciding the fate of the children.

The doctrine relied upon in Pennsylvania as well as other jurisdiction is "the best interests of the child." The determining factors are provided in relevant part by 23 Pa. C.S.A. ยง 5328:

(1) Which party is more likely to encourage and permit frequent and continuing

contact between the child and another party.

(2) The present and past abuse committed by a party or member of the party's

household, whether there is a continued risk of harm to the child or an abused

party and which party can better provide adequate physical safeguards and

supervision of the child.

(3) The parental duties performed by each party on behalf of the child.

(4) The need for stability and continuity in the child's education, family life and

community life.

(5) The availability of extended family.

(6) The child's sibling relationships.

(7) The well-reasoned preference of the child, based on the child's maturity and


(8) The attempts of a parent to turn the child against the other parent, except in

cases of domestic violence where reasonable safety measures are necessary to

protect the child from harm.

(9) Which party is more likely to maintain a loving, stable, consistent and

nurturing relationship with the child adequate for the child's emotional needs.

(10) Which party is more likely to attend to the daily physical, emotional,

developmental, educational and special needs of the child.

(11) The proximity of the residences of the parties.

(12) Each party's availability to care for the child or ability to make appropriate

child-care arrangements.

(13) The level of conflict between the parties and the willingness and ability of

the parties to cooperate with one another. A party's effort to protect a child from

abuse by another party is not evidence of unwillingness or inability to cooperate

with that party.

(14) The history of drug or alcohol abuse of a party or member of a party's


(15) The mental and physical condition of a party or member of a party's


(16) Any other relevant factor.

Despite this detailed list of factors it is crucial that a finder of fact determine what led to this custody litigation. If there was adulterous conduct, an issue with financial mismanagement which caused insolvency of the family, abuse that is not physically or tangibly apparent such as psychological abuse of the spouse, or any other contentious relationship matter which lead to a custody debate. The underlying motives of the parties are crucial to a custody determination.

When the parties are motivated by previous slights or monumental relationship blunders, they may be depriving, by means of their attorney's argument for custody, an otherwise good parent of the opportunity to have continued contact with their child and provide parental support. It is important that a judge have a discussion with the parties that will outline their relationship history and determine the causes of the dissolution of their relationship. This discussion will make a judge better suited to see through baseless claims rooted in spite.

Joseph D'Agostion is a third-year law student at Widener University in Delaware. He works part-time in the Law Offices of Diana Schimmel, Esq. and is a member of the Pennsylvania Criminal Defense Clinic. Joseph is interested in business and tax law and hopes to pursue an MBA in the near future. He is a lifelong Philadelphian.

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